Seattle City Attorney Tom Carr is no media darling, and his stock is falling further. His reputation as a government lawyer who is hostile to a free press could soon be set in cement. His latest action might not only create trouble in the courts but could blow up in an unlikely place: Gov. Chris Gregoire's face.
Last week, Carr's office subpoenaed three Seattle Times reporters – Mike Carter, Steve Miletich, and Christine Willmsen – demanding to know their sources for a series of stories on cops who were under investigation for allegedly bad behavior in Belltown. The city is being sued by one of the key figures, John Powers, who is claiming he was defamed and wrongfully fired from the police department. The city wants to know who was leaking information to the paper.
Such subpoenas are an extreme and rarely used measure here. Even more eyebrow-raising is that Carr's legal gambit follows on the heels of the passage of a "shield law" signed by Gov.Christine Gregoire last spring that is designed to protect journalists from just this kind of harassment. The fight over the subpoenas might offer the first test of the new law. The shield law was pushed by Republican Attorney General Rob McKenna and the state media and was drafted by the Times' lawyer, David Wright Tremaine's Bruce Johnson, a highly regarded expert in First Amendment law. (Johnson represented Seattle Weekly when I was editor.)
Carr seems to suggest, in an Associated Press story, that he's not trying to force the reporters into jail but merely trying to demonstrate that he's done everything he could to get information key to defending the city against the former police officer's lawsuit:
City Attorney Thomas A. Carr said the subpoenas ... could help the city show a jury that it took all possible steps to prove that former officer John Powers was not defamed."
"I'm not saying we'd take this to the Supreme Court, and we certainly don't want reporters to go to jail," Carr said. "We're going to defend [the articles the reporters wrote] as true, but it would be nice if the Times would help us out on this."
The Times is likely to vigorously protect its confidential sources under any circumstances because forcing disclosure of sources undermines First Amendment protections for everyone. The suggestion by Carr that the reporter subpoenas might be merely a legal tactic outraged Executive Editor David Boardman. If the issuance of the subpoenas is "some sort of legal strategy, I'm offended that the city attorney would try to use us and the First Amendment in that way," Boardman said.
This comes on the heels of Carr's controversial appointment by Gregoire to the "Sunshine Committee" a newly formed entity to oversee implementation of the state's public records laws. Some open records advocates see that as a case of hiring a fox to watch the hen house. (They weren't reassured when Gregoire refused to release records relating to her appointments to the committee – in that case the sunshine was already eclipsed.)
As Sunshine Committee chair, Carr oversees the process reviewing whether certain records are exempt from public disclosure. Carr has been criticized by open records advocates for his work to keep many city of Seattle public records under wraps. The open-government ombudsman for the state attorney general's office said Gregoire could not have picked "a more polarizing figure" to head the group. Another non-partisan advocate I queried via e-mail at the time of the appointment (and who asked not to be quoted by name) said that while they had no problem with Carr personally, they were very concerned about the message his appointment sent:
Carr is a paid advocate for a city with one of the worst track records for record disclosure ... compliance. His client [the city of Seattle] manufactured the broad governmental "attorney-client privilege" exemption that is now being used and abused statewide to withhold embarrassing and inconvenient information from the public. Selecting Carr as the chair of the [Sunshine] Committee sent a disturbing message to the public.
The Times was sufficiently disturbed that they devoted an editorial to advising Carr on how he could prove his mettle on the Sunshine Committee "hotseat." Carr has insisted that he has been representing his client, the city, and that his positions on public records have not necessarily reflected his personal views. Nevertheless, he is heavily identified with government resistance to disclosure.
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